Delhi Excise Act sec. 33,58,59 and sec.61 - Sec.457 of Cr.P.C - Release of vehicle seized while transporting illicit liquor by police - Magistrate dismissed - High court allowed as the vehicle was seized by police but not by Excise Department - Apex court held that special law prevails over the general law and held that as per sec.59 all seized properties are to be produced before the Deputy commissioner of Excise who holds authority to deal with the same - Sec.61 bars jurisdiction of courts in respect of that seized properties and held that High court committed wrong and set aside the order of High court as it exceeds it's Jurisdiction = STATE (NCT OF DELHI) … APPELLANT VERSUS NARENDER …RESPONDENT = 2014 ( JANUARY - VOL -1) JUDIS.NIC.IN/ S.C./ FILE NAME= 41134

  Delhi Excise Act sec. 33,58,59 and sec.61 - Sec.457 of Cr.P.C - Release of vehicle seized while transporting illicit liquor by police - Magistrate dismissed - High court allowed as the vehicle was seized by police but not by Excise Department - Apex court held that special law prevails over the general law and held that as per sec.59 all seized properties are to be produced before the Deputy commissioner of Excise who holds authority to deal with the same - Sec.61 bars jurisdiction of courts in respect of that seized properties and held that High court committed wrong and set aside the order of High court as it exceeds it's Jurisdiction =

The  vehicle
abandoned by the driver was “Cruiser Force” and had registration No.  HR-56-
7290.  After opening of  the  windows  of  the  vehicle,  27  Cartons,  each
containing 12 bottles of 750  ml.  Mashaledar  country-made  liquor  and  20
Cartons, each containing 48 quarters of Besto Whisky were found  inside  the
vehicle.  All the 47 Cartons were embossed  with  ‘Sale  in  Haryana  only’.
Constable Raghmender Singh gave a report to the police  and  on  that  basis
FIR No. 112 of 2011 dated 17.04.2011 was registered  at  Aman  Vihar  Police
Station under Section 33(a) and Section 58 of the Delhi  Excise  Act,  2009.
During the course of investigation, Narender,  respondent  herein,  claiming
to be the owner of the vehicle, filed an  application  for  its  release  on
security, before the Metropolitan Magistrate,  Rohini,  who,  by  his  order
dated 24th of May, 2011 rejected the same, inter alia, holding that  he  has
no power to release the vehicle seized in connection with the offence  under
the Delhi Excise Act. 

The High  Court,  by  its  impugned
order dated 28th of November, 2011 directed the vehicle to  be  released  in
favour of the registered owner on furnishing security  to  the  satisfaction
of the  Metropolitan  Magistrate.   
While  doing  so,  the  High  Court  has
observed as follows:


           “………The vehicle in question was seized by  the  Police  and  not
           confiscated and if that was so, Section  58,  Delhi  Excise  Act
           would not apply with regard to the vehicle in question  and  the
           procedure that was to be followed regarding the vehicle  was  to
           be found in Chapter VI of Delhi Excise Act and also Section 451,
           Cr.P.C………”   =

 Section  59(1)  thereof  provides   that   notwithstanding
anything contained in any other law where anything liable  for  confiscation
under Section 58 is seized or detained, the officer  seizing  and  detaining
such thing shall produce  the  same  before  the  Deputy  Commissioner.   
On
production of the seized property, the  Deputy  Commissioner,  if  satisfied
that the offence under the Act has been committed,  may  order  confiscation
of such property.  

 “61.  Bar  of  jurisdiction  in  confiscation.-   
Whenever   any
           intoxicant, material, still, utensil,  implement,  apparatus  or
           any  receptacle,  package,  vessel,  animal,  cart,   or   other
           conveyance used in committing any offence, is seized or detained
           under this Act, no court shall, notwithstanding anything to  the
           contrary contained in any other law for the time being in force,
           have  jurisdiction  to  make  any  order  with  regard  to  such
           property.”

State of  Karnataka  v. K.A. Kunchindammed, (2002) 9 SCC 90,   which  while  dealing  with  somewhat
similar provisions under the Karnataka Forest Act held  as follows:-


           “23……….The position is made clear by the non obstante clause  in
           the  relevant  provisions  giving  overriding  effect   to   the
           provisions  in  the  Act  over  other  statutes  and  laws.  
The
           necessary corollary of such provisions is that in a  case  where
           the Authorized Officer is empowered  to  confiscate  the  seized
           forest produce on being satisfied that an offence under the  Act
           has been committed thereof  the  general  power  vested  in  the
           Magistrate for  dealing  with  interim  custody/release  of  the
           seized materials under CrPC has  to  give  way.  
The  Magistrate
           while dealing with a case of any seizure of forest produce under
           the Act should examine  
whether  the  power  to  confiscate  the
           seized forest produce is vested in the Authorized Officer  under
           the Act and if he  finds  that  such  power  is  vested  in  the
           Authorized Officer then he has no power to pass an order dealing
           with interim custody/release of the seized  material.  
This,  in
           our view, will help in proper implementation  of  provisions  of
           the special Act and will  help  in  advancing  the  purpose  and
           object of the statute. 
If in such cases power to  grant  interim
           custody/release of the seized forest produce is  vested  in  the
           Magistrate then it will be defeating the very scheme of the Act.
           Such a consequence is to be avoided.


           24. From the statutory provisions and the analysis made  in  the
           foregoing paragraphs the  position  that  emerges  is  that  the
           learned Magistrate and the learned Sessions Judge were right  in
           holding that on facts and in the circumstances of the  case,  it
           is the Authorized Officer who is vested with the power  to  pass
           order of interim custody of the vehicle and not the  Magistrate.
           The High Court was in error in taking a view to the contrary and
           in setting aside the orders passed by  the  Magistrate  and  the
           Sessions Judge on that basis.”



      From a conspectus of what we have observed above, the  impugned  order
of the High Court is found to be vulnerable and, therefore, the same  cannot
be allowed to stand.

  In the result, we allow this appeal, set aside the  impugned  judgment
and order of the High Court and hold that the High  Court  exceeded  in  its
jurisdiction in directing for release of the vehicle on security.

2014 ( JANUARY - VOL -1) JUDIS.NIC.IN/ S.C./ FILE NAME= 41134

                                                          
 REPORTABLE


                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO.25  OF 2014
              (@SPECIAL LEAVE PETITION (CRL.) NO. 8423 OF 2012)


STATE (NCT OF DELHI)                         … APPELLANT

                                   VERSUS


NARENDER                                     …RESPONDENT


                               J U D G M E N T


CHANDRAMAULI KR. PRASAD, J.


      The State of Delhi, aggrieved by the order  dated  28th  of  November,
2011 passed by the Delhi High Court in  Criminal  M.C.  No.  2540  of  2011,
whereby it had directed for release of the vehicle bearing Registration  No.
HR-56-7290 to the registered owner on security, has preferred  this  special
leave petition.


      Leave granted.


      Shorn of unnecessary details, facts giving rise to the present  appeal
are  that  while  constables  Raghmender  Singh  and  Sunil  were  on  night
patrolling duty at Kirari Nithari turn on 17th of April, 2011,  they  saw  a
vehicle coming from the side of the Nithari Village.   Constable  Raghmender
Singh signalled the driver to stop the vehicle, but he  did  not  accede  to
his command and turned the vehicle  into  the  Prem  Nagar  Extension  Lane.
Both the constables chased the vehicle on their motorcycle  and  the  driver
of the vehicle, apprehending that he would be caught, left the  vehicle  and
ran away from the place, taking advantage  of  the  darkness.  
The  vehicle
abandoned by the driver was “Cruiser Force” and had registration No.  HR-56-
7290.  After opening of  the  windows  of  the  vehicle,  27  Cartons,  each
containing 12 bottles of 750  ml.  Mashaledar  country-made  liquor  and  20
Cartons, each containing 48 quarters of Besto Whisky were found  inside  the
vehicle.  All the 47 Cartons were embossed  with  ‘Sale  in  Haryana  only’.
Constable Raghmender Singh gave a report to the police  and  on  that  basis
FIR No. 112 of 2011 dated 17.04.2011 was registered  at  Aman  Vihar  Police
Station under Section 33(a) and Section 58 of the Delhi  Excise  Act,  2009.
During the course of investigation, Narender,  respondent  herein,  claiming
to be the owner of the vehicle, filed an  application  for  its  release  on
security, before the Metropolitan Magistrate,  Rohini,  who,  by  his  order
dated 24th of May, 2011 rejected the same, inter alia, holding that  he  has
no power to release the vehicle seized in connection with the offence  under
the Delhi Excise Act.
The respondent again filed  an  application  for  the
same relief  i.e.  for  release  of  the  vehicle  on  security  before  the
Metropolitan Magistrate but the said application  also  met  with  the  same
fate.   By  order-dated  14th  of  July,  2011,  the  learned   Metropolitan
Magistrate declined to pass the order for  release,  inter  alia,  observing
that any order directing for  release  of  the  vehicle  on  security  would
amount to review of the order dated 24th  of  May,  2011,  which  power  the
court did not possess.
      Aggrieved by the same, the respondent filed an application before  the
High Court under Section 482 of the Code of Criminal Procedure  (hereinafter
referred to as ‘the Code’), assailing the order dated 24th May, 2011  passed
by the learned Metropolitan Magistrate.
The High  Court,  by  its  impugned
order dated 28th of November, 2011 directed the vehicle to  be  released  in
favour of the registered owner on furnishing security  to  the  satisfaction
of the  Metropolitan  Magistrate.  
While  doing  so,  the  High  Court  has
observed as follows:


           “………The vehicle in question was seized by  the  Police  and  not
           confiscated and if that was so, Section  58,  Delhi  Excise  Act
           would not apply with regard to the vehicle in question  and  the
           procedure that was to be followed regarding the vehicle  was  to
           be found in Chapter VI of Delhi Excise Act and also Section 451,
           Cr.P.C………”




      Mr. Mohan Jain, Additional Solicitor General appears on behalf of  the
appellant whereas the respondent is represented by Mr. Harish  Pandey.   Mr.
Jain submits that in view of the embargo put by  Section  61  of  the  Delhi
Excise Act, the High Court had no jurisdiction to pass an order for  release
of the vehicle on security.  Mr. Pandey,  however,  submits  that  the  High
Court has the power under Section 451 of the Code to direct for  release  of
the vehicle on security and the same is legal and valid.


      Rival submissions necessitate examination of the scheme of  the  Delhi
Excise Act, 2009 (hereinafter referred to as ‘the Act’).  Section 33 of  the
Act  provides  for  penalty  for   unlawful   import,   export,   transport,
manufacture, possession, sale etc. of intoxicant and  Section  33(a),  which
is relevant for the purpose reads as follows:


           “33.   Penalty   for   unlawful   import,   export,   transport,
           manufacture,   possession,   sale,   etc.-  
(1)   Whoever,   in
           contravention of provision of this Act or of any rule  or  order
           made or notification issued or of any licence, permit  or  pass,
           granted under this Act-

           (a) manufactures, imports, exports, transports  or  removes  any
           intoxicant;

                 xxx              xxx        xxx

           shall be punishable with imprisonment for a term which shall not
           be less than six months but which may extend to three years  and
           with fine which shall not be less than fifty thousand rupees but
           which may extend to one lakh rupees.”


      Section 58 of the Act provides for confiscation of certain things  and
Section 58(d) thereof, with which we are concerned in  the  present  appeal,
reads as follows:


           “58. Certain things liable to confiscation.-
Whenever an offence
           has  been  committed,  which  is  punishable  under  this   Act,
           following things shall be liable to confiscation, namely-


                 xxx        xxx         xxx


           (d) any animal, vehicle, vessel, or other  conveyance  used  for
           carrying the same.”


      From a plain reading of Section 33(a) of the Act, it is  evident  that
transportation of any intoxicant in contravention of the provisions  of  the
Act or of any rule or order made or  notification  issued  or  any  licence,
permit or pass, is punishable and any vehicle used for carrying   the  same,
is liable for confiscation under Section 58(d) of the Act.   Section  59  of
the Act deals with the power  of  confiscation  of  Deputy  Commissioner  in
certain  cases.  
Section  59(1)  thereof  provides   that   notwithstanding
anything contained in any other law where anything liable  for  confiscation
under Section 58 is seized or detained, the officer  seizing  and  detaining
such thing shall produce  the  same  before  the  Deputy  Commissioner.   
On
production of the seized property, the  Deputy  Commissioner,  if  satisfied
that the offence under the Act has been committed,  may  order  confiscation
of such property.  
Therefore, under the scheme of the Act any  vehicle  used
for carrying the intoxicant is liable to be confiscated and  on  seizure  of
the vehicle  transporting  the  intoxicant,  the  same  is  required  to  be
produced before the Deputy Commissioner, who  in  turn  has  been  conferred
with the power of its confiscation.
      Section 61 of the Act puts an embargo on jurisdiction of  courts,  the
same reads as follows:


           “61.  Bar  of  jurisdiction  in  confiscation.-  
Whenever   any
           intoxicant, material, still, utensil,  implement,  apparatus  or
           any  receptacle,  package,  vessel,  animal,  cart,   or   other
           conveyance used in committing any offence, is seized or detained
           under this Act, no court shall, notwithstanding anything to  the
           contrary contained in any other law for the time being in force,
           have  jurisdiction  to  make  any  order  with  regard  to  such
           property.”


      According to this section, notwithstanding anything contrary contained
in any other  law  for  the  time  being  in  force,  no  court  shall  have
jurisdiction to  make  any  order  with  regard  to  the  property  used  in
committing any offence and seized under the Act.
      It is relevant here to state that in the present case, the High Court,
while releasing the vehicle  on  security  has  exercised  its  power  under
Section 451 of the Code.
True it is that where any property is produced  by
an officer before a criminal court during an inquiry  or  trial  under  this
section, the court may make any direction as it thinks fit  for  the  proper
custody of such property pending the conclusion of the inquiry or trial,  as
the case may be.
At the conclusion of the inquiry or trial, the  court  may
also, under Section 452 of the Code, make an order for the disposal  of  the
property produced before it and make such other direction as  it  may  think
necessary.
Further, where the property is not  produced  before  a  criminal
court in an inquiry or trial, the Magistrate is empowered under Section  457
of the Code to make such order as  it  thinks  fit.  
In  our  opinion,  the
general provision of Section 451 of the Code with regard to the custody  and
disposal of the property or for that matter by destruction, confiscation  or
delivery to any person entitled to possession thereof under Section  452  of
the Code or that of Section 457 authorising a Magistrate to  make  an  order
for disposal of property, if seized by an officer and not produced before  a
criminal court during an inquiry or trial, however, has  to  yield  where  a
statute makes a special  provision  with  regard  to  its  confiscation  and
disposal.
We have referred to the scheme of the Act  and  from  that  it  is
evident that the vehicle  seized  has  to  be  produced  before  the  Deputy
Commissioner, who  in  turn  has  been  conferred  with  the  power  of  its
confiscation  or  release  to  its  rightful  owner.  
The  requirement   of
production of seized property before the Deputy Commissioner  under  Section
59(1) of the Act is, notwithstanding anything contained in  any  other  law,
and,  so also is the power of confiscation.  Not only this,  notwithstanding
anything to the contrary contained in any other law for the  time  being  in
force, no court, in terms of Section 61 of  the  Act,  has  jurisdiction  to
make any order with regard  to  the  property  used  in  commission  of  any
offence under the Act.
In the present case, the Legislature has used a non-
obstante clause not only in Section 59 but also in Section 61  of  the  Act.
As is well settled, a non-obstante clause is a legislative  device  to  give
effect to the enacting part of the section in  case  of  conflict  over  the
provisions mentioned in the non-obstante clause.
 Hence,  Section  451,  452
and 457 of the Code must yield to the provisions of the Act and there is  no
escape from the conclusion that the Magistrate or for that matter  the  High
Court, while dealing with the case of seizure of vehicle under the Act,  has
any power to pass an order dealing with the interim custody of  the  vehicle
on security or its release thereof.
The view  which  we  have  taken  finds
support from a judgment of this Court in the case of
State of  Karnataka  v. K.A. Kunchindammed, (2002) 9 SCC 90,   which  while  dealing  with  somewhat
similar provisions under the Karnataka Forest Act held  as follows:-


           “23……….The position is made clear by the non obstante clause  in
           the  relevant  provisions  giving  overriding  effect   to   the
           provisions  in  the  Act  over  other  statutes  and  laws.  
The
           necessary corollary of such provisions is that in a  case  where
           the Authorized Officer is empowered  to  confiscate  the  seized
           forest produce on being satisfied that an offence under the  Act
           has been committed thereof  the  general  power  vested  in  the
           Magistrate for  dealing  with  interim  custody/release  of  the
           seized materials under CrPC has  to  give  way.  
The  Magistrate
           while dealing with a case of any seizure of forest produce under
           the Act should examine  
whether  the  power  to  confiscate  the
           seized forest produce is vested in the Authorized Officer  under
           the Act and if he  finds  that  such  power  is  vested  in  the
           Authorized Officer then he has no power to pass an order dealing
           with interim custody/release of the seized  material.  
This,  in
           our view, will help in proper implementation  of  provisions  of
           the special Act and will  help  in  advancing  the  purpose  and
           object of the statute. 
If in such cases power to  grant  interim
           custody/release of the seized forest produce is  vested  in  the
           Magistrate then it will be defeating the very scheme of the Act.
           Such a consequence is to be avoided.


           24. From the statutory provisions and the analysis made  in  the
           foregoing paragraphs the  position  that  emerges  is  that  the
           learned Magistrate and the learned Sessions Judge were right  in
           holding that on facts and in the circumstances of the  case,  it
           is the Authorized Officer who is vested with the power  to  pass
           order of interim custody of the vehicle and not the  Magistrate.
           The High Court was in error in taking a view to the contrary and
           in setting aside the orders passed by  the  Magistrate  and  the
           Sessions Judge on that basis.”



      From a conspectus of what we have observed above, the  impugned  order
of the High Court is found to be vulnerable and, therefore, the same  cannot
be allowed to stand.

      To put the record straight it is  relevant  here  to  state  that  the
counsel for the respondent had not, and in our opinion  rightly,  challenged
the vires of the provisions of the Act in  view  of  the  decision  of  this
Court in the case of Oma Ram v. State of Rajasthan, (2008) 5 SCC 502,  which
upheld a somewhat similar provision existing in the Rajasthan Excise Act.

      In the result, we allow this appeal, set aside the  impugned  judgment
and order of the High Court and hold that the High  Court  exceeded  in  its
jurisdiction in directing for release of the vehicle on security.

                                    ………..………..……………………………….J.
                                                   (CHANDRAMAULI KR. PRASAD)



                                                    ………………….………………………………….J.
                                                             (KURIAN JOSEPH)
NEW DELHI,
JANUARY 06, 2014.





-----------------------
15

Sec. 302 / 307 I.P.C. = Appreciation of Evidence - Gun Shot - only skin deep pellet injuries and only bone deep forehead injury - Doctor never stated that due to profusing of blood or due to injuries shock the deceased died - Doctor simply stated that died due to shock - Sessions court acquitted - High court convicted - Apex court converted the sentence from sec.302 to sec.307 of I.P.C. = M.B. SURESH … APPELLANT VERSUS STATE OF KARNATAKA …RESPONDENT = 2014 ( JANUARY - VOL -1) JUDIS.NIC.IN/ S.C./ FILE NAME= 41132

 Sec. 302 / 307 I.P.C. = Appreciation of Evidence - Gun Shot - only skin deep pellet injuries and only bone deep forehead injury - Doctor never stated that due to profusing of blood or due to injuries  shock the deceased died - Doctor simply stated that died due to shock - Sessions court acquitted - High court convicted - Apex court converted the sentence from sec.302 to sec.307 of  I.P.C. =

  “1.   Three circular pellet wounds present over the left part of
               the fore head, each measuring 0.5 cm. in diameter bony  deep
               over an area of 4 cm. x 4 cm.


            2. Three circular pellet wounds present near the lateral end of
               the right side of the lip each measuring 0.5 cm. in diameter
               skin deep over an area of 2 cm. x 2 cm.


            3. Two pellet wounds over the left side of  the  front  of  the
               neck 0.5 cm. in diameter the muscle deep, there is  an  exit
               lacerated wound over the back of the left side of  the  neck
               piercing the skin 2 cm. x 2 cm., with lacerated edges.

            4. Three circular  pellet  wounds  present  over  the  anterior
               aspect of the right arm each 0.5 cm. in diameter muscle deep
               over an area of 1 ½” x 1 ½”.


            5. Six circular pellet wounds present over the  right  anterior
               aspect of the chest each measuring 0.5 cm. in diameter  over
               an area of 4” x 4” skin deep.

            6. A single circular pellet present in the anterior  aspect  of
               chest at the level of the 12th  rib  measuring  0.5  cm.  in
               diameter and skin deep.

            7. An incised like wound 1” x ½” in the epigastrium skin deep.

            8. A single circular pellet wound measuing 0.5 cm  in  diameter
               skin deep in the right iliac fassa.

            9. Three pellet wounds circular in shapre  each  measuring  0.5
               cm. in diameter in the anterior aspect of the upper third of
               the right thigh over an area of 6” x 4” skin deep”




      As regards the cause of death, the  doctor  has  stated  that  it  was
because of shock.  The trial court, on appreciation  of  evidence,  came  to
the conclusion that the prosecution had not been  able  to  prove  its  case
beyond all reasonable doubt and, accordingly, acquitted  them  of  both  the
charges.  However, the judgment of acquittal has been reversed by  the  High
Court in an appeal preferred by the State. =

 As regards the cause of death, the doctor  has  opined  that
it was because of shock but he has nowhere stated that it  was  due  to  the
injuries caused by the appellant.  
For holding an accused guilty of  murder,
the prosecution  has  first  to  prove  that  it  is  a  culpable  homicide.
Culpable homicide is defined under Section 299 of the Indian Penal Code  and
an accused will come under the mischief of this section only  when  the  act
done by him has caused death.  
True it is that the deceased  died  of  shock
but there is no evidence to show that the shock had occurred on  account  of
the injuries caused by the appellant.  We cannot ignore  that  the  case  of
the prosecution itself is that after the deceased sustained  injuries  while
he was being taken to the hospital for treatment, he died on the  way.   Any
mishandling of the deceased by the person carrying him to  the  hospital  so
as to cause shock cannot be ruled out.  The doctor had not stated  that  the
deceased profusely bled which could have caused shock.  In  the  absence  of
any such evidence, we are in doubt  as  to  whether  the  deceased  suffered
shock on account of the injuries sustained by him.  It  is  not  shown  that
the injuries found on the person of the deceased were of such nature,  which
in the ordinary course of nature could cause shock.  We cannot  assume  that
those injuries can cause shock in  the  absence  of  any  evidence  in  this
regard.  The doctor has not even  remotely  suggested  that  the  shock  was
caused due to the injuries sustained by the deceased.  In the face  of  what
we have observed above, we are not in a position of hold that it is the  act
of the appellant, which caused death.  Hence, we are  of  the  opinion  that
the conviction of the appellant under Section 302 of the Indian  Penal  Code
cannot be sustained.


       Next question which falls for our consideration is as to the offence
for which the appellant M.B. Suresh would be liable.  
What has  been  proved
against this appellant is that he shot at the  deceased,  but  there  is  no
evidence to show that it was the injury inflicted  by  the  appellant  which
was the cause of death.  
However, from the facts proved, there is  no  doubt
that he shot at the deceased with an intention to kill him or  at  least  he
had the knowledge that the act would cause the death.  
Accordingly,  we  are
of the opinion that the  allegations  proved  constitute  an  offence  under
Section 307 of the Indian Penal Code.  
The view which we  have  taken  finds
support from the judgment of this Court in the case of  
Bhupendra  Singh  v. State of U.P., (1991) 2 SCC 750, 
in which it has been observed as follows:

             “9.………The evidence only established that  the  first  appellant
             shot at the deceased but it is not known where the  bullet  hit
             and whether that injury caused by the said bullet  shot  caused
             the death. Even in the case of shooting by a rifle  unless  the
             evidence shows the particular injury caused  by  the  same  and
             that injury is sufficient to cause  death,  the  offence  under
             Section 302 IPC could not be said to have been made out. In the
             circumstances, therefore, we are unable to agree with the  High
             Court that the first  appellant  is  guilty  of  offence  under
             Section 302  IPC  of  causing  the  death  of  Gajendra  Singh.
             However, we are of the view that while the first appellant shot
             at the deceased there could be no doubt that either he had  the
             intention to kill him or at least he had the knowledge that the
             act could cause the death.


             10. All the witnesses also say that the shot  by  A  1  brought
             down the deceased to the ground. There could, therefore, be  no
             doubt that the shot had caused some hurt or  injury  though  we
             could not predicate what was  the  nature  of  the  injury  and
             whether that  injury  could  have  caused  the  death.  In  the
             circumstances we consider that the offence would come under the
             second  limb  or  second  part  of  Section  307,  IPC.  Though
             imprisonment for life also could be  awarded  as  sentence  for
             such an offence on the facts  and  circumstances  we  impose  a
             sentence of 10  years  rigorous  imprisonment.  Accordingly  we
             alter the conviction  under  Section  302,  IPC  as  one  under
             Section 307 IPC and sentence him to a term of 10 years rigorous
             imprisonment.”


      Accordingly, we alter the conviction of the appellant M.B. Suresh from
Section 302 to Section 307 of the Indian Penal  Code  and  sentence  him  to
undergo rigorous imprisonment for ten years.




      Mr. Basant R. has not assailed the conviction of  the  appellant  M.B.
Suresh other than Section 302 of the Indian  Penal  Code.   As  regards  the
conviction of the other accused Bhadregowda under  Section  427,  it  is  on
correct appreciation of evidence, which does not call  for  interference  in
the present appeal.


      In the result, Criminal Appeal No. 985 of 2007 is partly allowed,  the
conviction of the appellant M.B. Suresh under  Section  302  of  the  Indian
Penal Code is set aside and is altered to Section 307 of  the  Indian  Penal
Code and he is sentenced to undergo rigorous  imprisonment  for  ten  years.
However,  his  conviction  under  other  penal  provisions  is   maintained.
Sentences awarded to him  shall  run  concurrently.  
As  the  appellant  has
already remained in custody for more than 10 years, we  direct  that  he  be
set at liberty forthwith unless required in any other case.

 2014 ( JANUARY - VOL -1) JUDIS.NIC.IN/ S.C./ FILE NAME= 41132                                

           REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO. 985 OF 2007

M.B. SURESH                                  … APPELLANT

                                   VERSUS


STATE OF KARNATAKA                          …RESPONDENT

                                    WITH
                        CRIMINAL APPEAL NO.21 OF 2014
             (@ SPECIAL LEAVE PETITION (CRL.) NO. 5363 OF 2007)


BHADREGOWDA                                  … APPELLANT
                                   VERSUS

STATE OF KARNATAKA                          …RESPONDENT



                               J U D G M E N T


CHANDRAMAULI KR. PRASAD,J.


      Appellant, besides his  father  Bhadregowda,  was  put  on  trial  for
offence punishable under Section 302, 114 and 427 of the Indian  Penal  Code
and Section 3 read with Section 25 and  27  of  the  Arms  Act.  
Additional
Sessions Judge, Hasan, vide judgment and order dated 24th of February,  2000
passed in Sessions Case No. 24 of 1992, acquitted both the  accused  of  all
the charges.  Aggrieved by the same, the State  of  Karnataka  preferred  an
appeal.
The High Court, vide judgment and  order  dated  9th  of  February,
2007 passed in Criminal Appeal No. 991 of  2000,  reversed  their  acquittal
and held the appellant  M.B.  Suresh  guilty  of  offence  punishable  under
Section 302 and 427 of the Indian Penal Code and Section 25 and  27  of  the
Arms Act.
However, his father  Bhadregowda  was  found  guilty  of  offence
punishable under Section 427 of the  Indian  Penal  Code  alone.  
Appellant
M.B. Suresh was sentenced to undergo life  imprisonment  for  offence  under
Section 302 of the Indian Penal  Code  and  fine  of  Rs.  5,000/-,  and  in
default to  undergo  simple  imprisonment  for  six  months.   
He  was  also
sentenced to undergo one year’s imprisonment and fine  of  Rs.  2,000/-  for
offence under Section 27 of the Arms Act.  
Both of them  were  sentenced  to
undergo simple imprisonment for one week for offence under  Section  427  of
the Indian Penal  Code  and  fine  of  Rs.  5,000/-  each.  
Sentences  were directed to run concurrently.  
Aggrieved  by  the  same,  M.B.  Suresh  has
preferred the present appeal whereas his father  Bhadregowda,  aggrieved  by
his conviction and sentence, has preferred Special Leave Petition  No.  5363
of 2007.

      Leave granted in Special Leave Petition (Criminal) No. 5363 of 2007.


      According to the prosecution there was a long standing enmity  between
the family of the informant and the accused in respect  of  land  of  Survey
No. 29/2 and 22 of Marur Village over  which  the  accused  Bhadregowda  was
claiming  tenancy  rights.  
According  to  the  prosecution,  on  19th   of
November, 1991 the deceased Chandrashekar,  along  with  his  elder  brother
Raghunath, cousin Krishnegowda, a friend Prakash and one Suresh came to  the
residence of Halegowda  in  the  Village  Marur  in  a  tractor-trailer  for
unloading the gunny bags.
After unloading the gunny  bags,  they  sent  the
tractor-trailer along  with  the  labourers  to  the  coffee  plantation  of
Ramegowda to pluck coffee seeds.   However,  the  aforesaid  persons  stayed
back at Halegowda’s house to have a cup of coffee and later, at about  10.30
A.M., while they were going to coffee estate by the side of the  wetland  of
Ramegowda, Chandrashekar was ahead of them.   At  that  time,  Chandrashekar
was shot at by the appellant M.B. Suresh, who was  standing  near  the  gate
made of bamboo.  After the first shot,  his  father  Bhadregowda  instigated
him to fire again and at that  the  appellant  M.B.  Suresh  fired  for  the
second time at the deceased and thereafter they left the place.  P.Ws. 1  to
3, namely Krishnegowda, Raghunath and Prakash respectively,  rushed  to  the
place where Chandrashekar had fallen on the ground  and  in  order  to  save
him, they carried him to the village, but unfortunately he died  because  of
the gun shot injury on their way to  the  village.   On  the  basis  of  the
report given by  Krishnegowda (PW-1), a case was registered  at  the  Bellur
Police  Station.   Post-mortem  on  the  dead  body  was  conducted  by  Dr.
Gunashekar V.C.(PW-10), who  found  nine  injuries  on  the  person  of  the
deceased caused by the appellant.


           “1.   Three circular pellet wounds present over the left part of
               the fore head, each measuring 0.5 cm. in diameter bony  deep
               over an area of 4 cm. x 4 cm.


            2. Three circular pellet wounds present near the lateral end of
               the right side of the lip each measuring 0.5 cm. in diameter
               skin deep over an area of 2 cm. x 2 cm.


            3. Two pellet wounds over the left side of  the  front  of  the
               neck 0.5 cm. in diameter the muscle deep, there is  an  exit
               lacerated wound over the back of the left side of  the  neck
               piercing the skin 2 cm. x 2 cm., with lacerated edges.

            4. Three circular  pellet  wounds  present  over  the  anterior
               aspect of the right arm each 0.5 cm. in diameter muscle deep
               over an area of 1 ½” x 1 ½”.


            5. Six circular pellet wounds present over the  right  anterior
               aspect of the chest each measuring 0.5 cm. in diameter  over
               an area of 4” x 4” skin deep.

            6. A single circular pellet present in the anterior  aspect  of
               chest at the level of the 12th  rib  measuring  0.5  cm.  in
               diameter and skin deep.

            7. An incised like wound 1” x ½” in the epigastrium skin deep.

            8. A single circular pellet wound measuing 0.5 cm  in  diameter
               skin deep in the right iliac fassa.

            9. Three pellet wounds circular in shapre  each  measuring  0.5
               cm. in diameter in the anterior aspect of the upper third of
               the right thigh over an area of 6” x 4” skin deep”




      As regards the cause of death, the  doctor  has  stated  that  it  was
because of shock.  The trial court, on appreciation  of  evidence,  came  to
the conclusion that the prosecution had not been  able  to  prove  its  case
beyond all reasonable doubt and, accordingly, acquitted  them  of  both  the
charges.  However, the judgment of acquittal has been reversed by  the  High
Court in an appeal preferred by the State.


      We have heard Mr. Basant R., learned Senior Advocate, on behalf of the
appellant whereas the respondent, State of Karnataka is represented  by  Ms.
Anitha Shenoy.  Mr. Basant submits that even  if  the  entire  case  of  the
prosecution is accepted, the same  does  not  constitute  an  offence  under
Section 302 of the Indian Penal Code.  He  submits  that  according  to  the
prosecution, the deceased died of shock but there is nothing  on  record  to
show that the shock was on account of the injury inflicted by the  appellant
M.B. Suresh.  He further submits that the prosecution has  not  brought  any
evidence to show that the deceased suffered any grievous hurt  and  in  that
view of the matter, the appellant at most can be held guilty for an  offence
under Section 324 of  the  Indian  Penal  Code.   He  points  out  that  the
appellant M.B. Suresh has already remained in jail for more than  10  years.
        Ms. Shenoy, however, contends that the very fact that  the  deceased
died within a few hours of the incident, it  has  to  be  assumed  that  the
cause of death, i.e. shock had occurred on account of the  gun  shot  injury
caused by the appellant          M.B. Suresh.


       We have bestowed our consideration to the rival  submissions  and  we
partly find substance in the submission of Mr.  Basant  R.   Dr.  Gunashekar
V.C.(PW-10) had conducted the post-mortem examination on the  dead  body  of
the deceased Chandrashekar and, as stated earlier, had found  nine  injuries
on his person out of which six were skin deep of the size  of  0.5  or  less
than 0.5 cm., three circular wounds each measuring 0.5 cm. bone  deep  found
over an area of 4 cm. x 4 cm. over the left side of the forehead as  also  a
lacerated wound of the same size over the left side  of  the  front  of  the
neck and another muscle deep wound of the same size on the right  arm.   The
doctor  conducting  the  post-mortem  examination  was  categorical  in  his
evidence that no internal injuries were found and the gun was fired  from  a
distant range.
As regards the cause of death, the doctor  has  opined  that
it was because of shock but he has nowhere stated that it  was  due  to  the
injuries caused by the appellant.  
For holding an accused guilty of  murder,
the prosecution  has  first  to  prove  that  it  is  a  culpable  homicide.
Culpable homicide is defined under Section 299 of the Indian Penal Code  and
an accused will come under the mischief of this section only  when  the  act
done by him has caused death.  
True it is that the deceased  died  of  shock
but there is no evidence to show that the shock had occurred on  account  of
the injuries caused by the appellant.  We cannot ignore  that  the  case  of
the prosecution itself is that after the deceased sustained  injuries  while
he was being taken to the hospital for treatment, he died on the  way.   Any
mishandling of the deceased by the person carrying him to  the  hospital  so
as to cause shock cannot be ruled out.  The doctor had not stated  that  the
deceased profusely bled which could have caused shock.  In  the  absence  of
any such evidence, we are in doubt  as  to  whether  the  deceased  suffered
shock on account of the injuries sustained by him.  It  is  not  shown  that
the injuries found on the person of the deceased were of such nature,  which
in the ordinary course of nature could cause shock.  We cannot  assume  that
those injuries can cause shock in  the  absence  of  any  evidence  in  this
regard.  The doctor has not even  remotely  suggested  that  the  shock  was
caused due to the injuries sustained by the deceased.  In the face  of  what
we have observed above, we are not in a position of hold that it is the  act
of the appellant, which caused death.  Hence, we are  of  the  opinion  that
the conviction of the appellant under Section 302 of the Indian  Penal  Code
cannot be sustained.


       Next question which falls for our consideration is as to the offence
for which the appellant M.B. Suresh would be liable.  
What has  been  proved
against this appellant is that he shot at the  deceased,  but  there  is  no
evidence to show that it was the injury inflicted  by  the  appellant  which
was the cause of death.  
However, from the facts proved, there is  no  doubt
that he shot at the deceased with an intention to kill him or  at  least  he
had the knowledge that the act would cause the death.  
Accordingly,  we  are
of the opinion that the  allegations  proved  constitute  an  offence  under
Section 307 of the Indian Penal Code.  
The view which we  have  taken  finds
support from the judgment of this Court in the case of  
Bhupendra  Singh  v. State of U.P., (1991) 2 SCC 750, 
in which it has been observed as follows:

             “9.………The evidence only established that  the  first  appellant
             shot at the deceased but it is not known where the  bullet  hit
             and whether that injury caused by the said bullet  shot  caused
             the death. Even in the case of shooting by a rifle  unless  the
             evidence shows the particular injury caused  by  the  same  and
             that injury is sufficient to cause  death,  the  offence  under
             Section 302 IPC could not be said to have been made out. In the
             circumstances, therefore, we are unable to agree with the  High
             Court that the first  appellant  is  guilty  of  offence  under
             Section 302  IPC  of  causing  the  death  of  Gajendra  Singh.
             However, we are of the view that while the first appellant shot
             at the deceased there could be no doubt that either he had  the
             intention to kill him or at least he had the knowledge that the
             act could cause the death.


             10. All the witnesses also say that the shot  by  A  1  brought
             down the deceased to the ground. There could, therefore, be  no
             doubt that the shot had caused some hurt or  injury  though  we
             could not predicate what was  the  nature  of  the  injury  and
             whether that  injury  could  have  caused  the  death.  In  the
             circumstances we consider that the offence would come under the
             second  limb  or  second  part  of  Section  307,  IPC.  Though
             imprisonment for life also could be  awarded  as  sentence  for
             such an offence on the facts  and  circumstances  we  impose  a
             sentence of 10  years  rigorous  imprisonment.  Accordingly  we
             alter the conviction  under  Section  302,  IPC  as  one  under
             Section 307 IPC and sentence him to a term of 10 years rigorous
             imprisonment.”


      Accordingly, we alter the conviction of the appellant M.B. Suresh from
Section 302 to Section 307 of the Indian Penal  Code  and  sentence  him  to
undergo rigorous imprisonment for ten years.




      Mr. Basant R. has not assailed the conviction of  the  appellant  M.B.
Suresh other than Section 302 of the Indian  Penal  Code.   As  regards  the
conviction of the other accused Bhadregowda under  Section  427,  it  is  on
correct appreciation of evidence, which does not call  for  interference  in
the present appeal.


      In the result, Criminal Appeal No. 985 of 2007 is partly allowed,  the
conviction of the appellant M.B. Suresh under  Section  302  of  the  Indian
Penal Code is set aside and is altered to Section 307 of  the  Indian  Penal
Code and he is sentenced to undergo rigorous  imprisonment  for  ten  years.
However,  his  conviction  under  other  penal  provisions  is   maintained.
Sentences awarded to him  shall  run  concurrently.  
As  the  appellant  has
already remained in custody for more than 10 years, we  direct  that  he  be
set at liberty forthwith unless required in any other case.




      The appeal (arising out of Special Leave Petition (Criminal) No.  5363
of 2007) preferred by the appellant Bhadregowda is, however, dismissed.




                                      ………..……………………………….J.
                           (CHANDRAMAULI KR. PRASAD)



                             …….………………………………….J.
                                         (JAGDISH SINGH KHEHAR)


NEW DELHI,
JANUARY 06, 2014





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15

Sec. 498 A, Sec.304 B and Sec.302 of I.P.C. = Circumstantial evidence -Extra -judicial confession high court negatived - Four portions of house - benefit of doubt possible who strangulated the deceased -Sec.302 I.P.C. not applicable as death occurred in first floor-Sec.498 -A of I.P.C. proved - Death occurred with in 7 years - Presumption comes Sec.304 B of I.P.C. as both are wife and husband living together - Sentence modified from sec.302 I.P.C. to under sec.304 B I.P.C. = Donthula Ravindranath @ Ravinder Rao …Appellant Versus State of Andhra Pradesh …Respondent = 2014 ( January - Vol -1 ) judis.nic.in/S.C./filename=41131

    Sec. 498 A, Sec.304 B and Sec.302 of I.P.C. = Circumstantial evidence -Extra -judicial confession high court negatived - Four portions of house - benefit of doubt possible who strangulated the deceased -Sec.302 I.P.C. not applicable as death occurred in first floor-Sec.498 -A of I.P.C. proved - Death occurred with in 7 years - Presumption comes Sec.304 B of I.P.C. as both are wife and husband living together - Sentence modified from sec.302 I.P.C. to under sec.304 B I.P.C. =

PW14 opined that the  cause  of
death is “shock due to asphyxia  on  account  of  strangulation”.   
The
learned counsel relied upon various passages from  Modi’s  Textbook  of
Medical Jurisprudence in a bid to establish that having regard  to  the
nature of the external injuries on the body of the deceased, the  death
of Jyotsna is  a  result  of  hanging  but  not  strangulation  thereby
creating doubt about the credibility of the prosecution case.

 [1]    We notice from the evidence of doctor that he is of the opinion  that
asphyxia can occur either because of strangulation or  hanging.  Only  by  a
very close scrutiny of the symptoms the  exact  cause  of  asphyxia  can  be
identified.
We must at the outset state that one of  the  five  circumstances
relied upon by the prosecution to establish the guilt of the  appellant
i.e. the alleged extra-judicial confession made by the appellant before
PW9  is  disbelieved  by  the  High  Court.    
Therefore,   only   four
circumstances remain, they are: 
(i) the appellant and the deceased were
husband and wife; and 
(ii) they were living in the same  house.   These
facts are not even disputed by the appellant.  
The  third  circumstance
relied upon by the prosecution is that the deceased was harassed by the
appellant for additional dowry.  
The said  circumstance  is  abundantly
established by the evidence of PW1 to PW4.
The fourth circumstance that the death of Jyotsna in the opinion[1]  of
the doctor was caused by strangulation (we do not  propose  to  examine
the correctness of the opinion) even  if  believed  need  not,  in  our
opinion, lead to the conclusion that it is only the accused who must be
held responsible for such strangulation.  The  building  in  which  the
accused and the deceased were living consists of  four  portions  where
others were also living.


Even if we give the  benefit  of  the  above  mentioned  doubt  to  the
appellant, the appellant cannot escape his liability for a charge under
section 304B IPC which creates a legal fiction.  All the ingredients of
section 304B are satisfied in the  instant  case,  that  the  death  of
Jyotsna occurred within seven years of her marriage the death  occurred
otherwise  than  under  normal  circumstances  and  that  Jyotsna   was
subjected to harassment which amounted to cruelty within the meaning of
section 498A IPC of which charge the appellant is also found guilty  by
both the courts below.

  In the light of the abovementioned circumstances,  the  appellant
in our opinion must be found guilty for an offence under  section  304B
IPC.  He was infact charged at trial for the said offence  though  both
the courts below failed to record any  finding  in  this  regard.   The
offence under section 304B IPC is punishable with the  sentence  for  a
term which may not be less than seven years but  which  may  extend  to
imprisonment for life.  We, therefore,  alter  the  conviction  of  the
appellant for an offence under section 302  IPC  to  an  offence  under
section 304B  IPC  and  reduce  the  sentence  to  the  period  already
undergone (we are informed that the appellant is in jail for  almost  a
decade).  He may be released forthwith if not  required  in  any  other
case.  The judgment under appeal is modified accordingly.

  2014 ( JANUARY - VOL-1 ) JUDIS.NIC.IN / S.C./FILENAME = 41131

                                                      Non-reportable

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO.594 OF 2009


Donthula Ravindranath @ Ravinder Rao         …Appellant
            Versus
State of Andhra Pradesh                            …Respondent





                               J U D G M E N T



Chelameswar, J.

1.    This is an appeal against the  judgment  of  the  High  Court  of
Andhra Pradesh in Criminal Appeal No.203 of 2005 dated 5th  June  2007.
By the said judgment, the High Court confirmed the judgment  dated  8th
February 2005 in Sessions Case No.23 of 2004 on the file of the V-Addl.
Sessions Judge (Fast Track Court) at Nizamabad.

2.    The sole appellant herein along with his parents was tried for the
offences under section 304B and 498A IPC.
Apart from that the appellant
herein was tried for an offence under section 302 IPC simplicitor while
all the three persons were charged and  tried  for  the  offence  under
section 302 read with section 109 IPC.  
While the sole appellant herein
was convicted for the offence under section 302 as well as section 498A
IPC, the trial court did not record any finding against  the  appellant
herein insofar as the charge under section 304B IPC is concerned.   
The other two accused were acquitted of all the charges.

3.    Aggrieved by the conviction and sentence, the  appellant  carried
the matter in appeal to  the  High  Court  unsuccessfully.   Hence  the
present appeal.

4.    The wife of the appellant by name Jyotsna died on 21st May  2003.
The deceased Jyotsna  and  the  appellant  married  sometime  in  1998,
therefore, the death of Jyotsna took place within seven years from  the
date of marriage.
The prosecution case rested  on  the  circumstantial
evidence.  
The prosecution relied on five  circumstances  to  establish
the guilt of the appellant herein, they are — 
(i) the deceased and  the
appellant were wife and husband; 
(ii) they  were  living  in  the  same
house; 
(iii) the deceased was harassed by the appellant for  additional
dowry; 
(iv) according to the  medical  evidence  though  the  body  was
allegedly found hanging it was infact  a  case  of  strangulation;  and
lastly an extra-judicial confession was made by A-1 before PW9.

5.    To establish the above circumstances the prosecution examined  as
many as 16 witnesses.  PW1, PW2 and PW4 are the parents and brother  of
the deceased respectively.  PW5 and PW6 are neighbours  and  PW7  is  a
resident of the locality who according to the prosecution saw the  dead
body hanging by a lungi to the roof.  PW14 is the doctor who  conducted
post mortem examination on the dead body on 22.5.2003.    PW15  is  the
Sub-Inspector of Police/Station House Officer attached  to  the  V-Town
Police Station, Nizamabad, Andhra Pradesh, who initially  registered  a
crime under section 304B IPC on the report (Ex.P1) made by PW1.   PWs1,
2 and 4 were examined to prove the factum of harassment  for  dowry  by
the appellant herein.  PW3 is the husband of the sister of the deceased
who was also examined for the purpose of  establishing  the  harassment
for dowry.  Their evidence remains  unimpeached  and  both  the  courts
below believed their version insofar as the appellant is concerned.

6.    PW7 is a resident of the locality where  the  appellant  and  the
deceased  lived.   According  to  the  prosecution,  he  went  to   the
appellant’s house at 8.30 a.m. on the fateful day in order  to  collect
some amount due from A-1.  There he found the  deceased  hanging  by  a
lungi to the roof on the first floor of the building.  With the hope of
saving the life, PW7 disentangled the dead body  and  laid  it  on  the
floor only to find that the lady  was  already  dead.   Thereafter,  he
alongwith the help of another person Bhumaiah  (who  is  not  examined)
shifted the dead body to the ground floor of the building.

7.    According to  the  evidence  of  PW1,  some  unknown  person  had
informed by telephone on the fateful day in the morning hours that  the
deceased was ill.  Thereafter, PW1 passed on the  information  to  PW4,
who was residing in the same town (Nizamabad) as the appellant and  the
deceased, and asked him to ascertain the state of affairs.  Thereafter,
PW1 along with other members of the family rushed to Nizamabad only  to
find the dead body of his daughter.

8.    The learned counsel for the appellant argued  that  there  is  no
iota of evidence to establish that the appellant caused  the  death  of
Jyotsna.  He submitted that even if the offence under section  498A  is
proved in the absence of any  clinching  evidence  that  the  appellant
caused the death of Jyotsna  it  would  not  be  safe  to  convict  the
appellant for the offence under section 302 IPC as the  requirement  of
criminal law is that  the  prosecution  must  establish  the  guilt  of
accused beyond all reasonable doubt and in  a  case  of  circumstantial
evidence  the  chain  of  circumstances  is  so  complete   that   they
collectively point only to the guilt of the accused without leaving any
scope for doubt.    The  learned  counsel  made  elaborate  submissions
impeaching the credibility of the  evidence  of  PW14  the  doctor  who
conducted the post mortem examination.
 PW14 opined that the  cause  of
death is “shock due to asphyxia  on  account  of  strangulation”.   
The
learned counsel relied upon various passages from  Modi’s  Textbook  of
Medical Jurisprudence in a bid to establish that having regard  to  the
nature of the external injuries on the body of the deceased, the  death
of Jyotsna is  a  result  of  hanging  but  not  strangulation  thereby
creating doubt about the credibility of the prosecution case.

9.    On the other hand, the learned counsel for the State argued  that
the concurrent finding of fact  resulting  in  the  conviction  of  the
appellant under section 302 IPC may  not  be  interfered  with  in  the
absence of any illegality in the judgment under appeal.

10.   We must at the outset state that one of  the  five  circumstances
relied upon by the prosecution to establish the guilt of the  appellant
i.e. the alleged extra-judicial confession made by the appellant before
PW9  is  disbelieved  by  the  High  Court.    
Therefore,   only   four
circumstances remain, they are: 
(i) the appellant and the deceased were
husband and wife; and 
(ii) they were living in the same  house.   These
facts are not even disputed by the appellant.  
The  third  circumstance
relied upon by the prosecution is that the deceased was harassed by the
appellant for additional dowry.  
The said  circumstance  is  abundantly
established by the evidence of PW1 to PW4.
The fourth circumstance that the death of Jyotsna in the opinion[1]  of
the doctor was caused by strangulation (we do not  propose  to  examine
the correctness of the opinion) even  if  believed  need  not,  in  our
opinion, lead to the conclusion that it is only the accused who must be
held responsible for such strangulation.  The  building  in  which  the
accused and the deceased were living consists of  four  portions  where
others were also living.


Even if we give the  benefit  of  the  above  mentioned  doubt  to  the
appellant, the appellant cannot escape his liability for a charge under
section 304B IPC which creates a legal fiction.  All the ingredients of
section 304B are satisfied in the  instant  case,  that  the  death  of
Jyotsna occurred within seven years of her marriage the death  occurred
otherwise  than  under  normal  circumstances  and  that  Jyotsna   was
subjected to harassment which amounted to cruelty within the meaning of
section 498A IPC of which charge the appellant is also found guilty  by
both the courts below.

11.   In the light of the abovementioned circumstances,  the  appellant
in our opinion must be found guilty for an offence under  section  304B
IPC.  He was infact charged at trial for the said offence  though  both
the courts below failed to record any  finding  in  this  regard.   The
offence under section 304B IPC is punishable with the  sentence  for  a
term which may not be less than seven years but  which  may  extend  to
imprisonment for life.  We, therefore,  alter  the  conviction  of  the
appellant for an offence under section 302  IPC  to  an  offence  under
section 304B  IPC  and  reduce  the  sentence  to  the  period  already
undergone (we are informed that the appellant is in jail for  almost  a
decade).  He may be released forthwith if not  required  in  any  other
case.  The judgment under appeal is modified accordingly.


                                                          ..………………………………….J.
                                                    (RANJANA PRAKASH
DESAI)

                                                         ...………………………………….J.
                                                 (J. CHELAMESWAR )
New Delhi;
January 06, 2014.
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[1]    We notice from the evidence of doctor that he is of the opinion  that
asphyxia can occur either because of strangulation or  hanging.  Only  by  a
very close scrutiny of the symptoms the  exact  cause  of  asphyxia  can  be
identified.

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8